Supreme Court Restores Travel Ban – Implications for Employers

On December 4, 2017, the U.S. Supreme Court allowed enforcement of the Presidential Proclamation that established the so-called Trump travel ban pending future appeals hearings in the federal courts. Employers in industries ranging from the tech sector to medical fields to hospitality may feel the impact. 

The reimplementation of the ban is immediate. However, persons with visas issued before September 24, 2017, the date of the Proclamation, still should be able to enter the United States, subject to some level of scrutiny on arrival.

Employers with personnel from the affected countries, particularly, Iran and Syria to which the some of the broadest restrictions apply, likely will feel the biggest impact. Employees who need to travel internationally should anticipate experiencing greater delays – regardless of the country of nationality due to additional screening procedures. Employers concerned about how about the direct and indirect impact of the ban on their workforce should consult immigration counsel for additional guidance.

Countries and Visas Subject to the Ban

The Executive Order suspends entry to nationals from eight countries: Chad, Iran, Libya, Somalia, Syria, Yemen, North Korea, and Venezuela. It also has a limited impact on Iraqis in the form of heightened scrutiny at visa interviews. 

The current version of the travel ban impacts both immigrant and nonimmigrant visas. Immigrant visas are granted to persons eligible for employment-based or family-based permanent resident status and green cards. Nonimmigrant visas are available for temporary visits, including business, tourism, studying, research, cultural exchange, performances, and work for U.S. employers. B-1 is the nonimmigrant category of visas for business travel, including contract negotiations to buy or sell goods or services. B-2 is the category for tourism, family visits, and other limited activities.

Nationals of the eight designated countries are subject to travel restrictions contained in the 21-page Proclamation, which can be summarized as follows:

Work authorized nonimmigrant categories, such as H-1B foreign workers, L-1 intracompany transferee personnel, E-2 investors, J-1 exchange visitors, H-2B temporary workers, O-1 extraordinary ability personnel, and P-1 performers, are restricted only for three of the eight countries: Iran, Syria, and North Korea. Business visits and tourism are suspended for seven countries -- all but Somalia. 

Immigrant visa processing is suspended for seven countries -- all but Venezuela. Employment-based immigrant processing often takes years, due to the number of phases and level of scrutiny involved. Employers who have succeeded through one or two phases to sponsor a foreign worker for a green card could find that worker is unable to obtain the immigrant visa and green card due to the travel ban.

Exceptions to the Travel Ban

• Persons already in the United States are not required to depart under the travel ban. 
• Green card holders are exempt.
• Persons traveling with an advance parole document, typically, those with green card processing underway, should not be subjected to the ban.
• The ban does not apply to dual citizens traveling on the passport of a country other than one referenced in the ban. 
• Persons granted political asylum and any refugee already admitted to the United States.

Waivers

The State Department, which processes visas, and Customs and Border Protection (CBP), with immigration officials at land and airports of entry, are authorized to issue waivers in the national interest on a case-by-case basis in individual circumstances, such as the following:

• The person seeks to reenter the United States to resume an activity, and the denial of reentry would impair that activity;
• The person previously had established significant contacts with the United States;
• The person seeks to enter the United States for significant business or professional obligations and the denial of entry would impair those obligations;
• The person seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, where the entry is otherwise permitted, and denial of entry would cause the foreign national undue hardship;
• An infant, a young child or adoptee, or other individual needs urgent medical care, or
• Other special circumstances justify the entry.

The full Proclamation provides additional details here.